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  • By: Farren Sheehan, Esq.
  • Published: November 11, 2017

A Will is an important legal document that designates who will receive property of a testator when he dies. A Will enables property to pass to others with minimal court involvement. Under Texas law there are certain legal requirements that must be met when executing the Will. One important requirement is that the testator freely made and signed his Will without being coerced or unduly influenced by another person. Undue influence is a ground for denial of probate of a Will, which may arise after the testator’s death when a person challenges a Will in a Will contest. In this article we will discuss what undue influence is under Texas law. With the help of a probate attorney such as Austin probate lawyer Farren Sheehan, a person can make sure their Will is properly drafted and executed.

Advantages Of A Will

A Will is a written, legal document that goes into effect upon the testator’s death and states how the testator would like his property distributed. A Will is a valuable legal instrument that provides for the distribution of property without significant court intervention. If a person dies in Texas without a Will, his property passes to his heirs under Texas intestacy laws, and the estate may not pass to those the testator wishes to receive the property.

Requirements For Execution And Will Contests

In order for a Will to be valid, one of the requirements is that the testator must have freely executed his Will and not been forced or coerced into signing. Often this is a fact question that comes up in a Will contest in probate court after the testator dies. If an heir or creditor believes the testator was unduly influenced when executing the Will offered for probate, she may challenge the Will under the doctrine of undue influence in a Will contest.

Will contests can be costly and stressful for a family. Often those challenging the Will were beneficiaries of a previous Will that were not named in a new Will, or are family members that were left out and felt they should have been included. A person may wish to challenge a Will when the beneficiary seems like an odd choice, in light of what others knew about the testator’s wishes. The challenging party must gather sensitive information of the testator and a substantial amount of evidence to prove undue influence at the time of execution.

Requirements For Undue Influence

Texas courts have established the requirements for establishing undue influence. Under Texas law, the contestant must prove the following three elements:

  • The existence and exertion of an influence;
  • The effective operation of that influence so as to subvert or overpower the testator’s mind at the time of the execution of the testament; and
  • The execution of a testament which the maker would not have executed but for such influence.

The person claiming undue influence will have to prove these elements with evidence. For the influence to be “undue”, the evidence must show that the influence destroyed the free agency of the testator and the Will produced expresses the wishes of the one exerting the influence. For example, merely asking someone to include them as a beneficiary in their Will is likely not enough to meet this standard.

Probate courts determining undue influence will review many facts, such as:

  • The circumstances surrounding execution of the Will instrument;
  • The relationship between the testator and the beneficiary and any others who might be expected recipients of the testator’s bounty;
  • The motive, character, and conduct of the persons benefitted by the instrument;
  • The participation by the beneficiary in the preparation or execution of the instrument;
  • The words and acts of the parties;
  • The interest in and opportunity for the exercise of undue influence;
  • The physical and mental condition of the testator at the time of the Will’s execution, including the extent to which she was dependent upon and subject to the control of the beneficiary; and
  • The improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition of the property.

What A Probate Attorney Can Do To Help

A probate attorney will make sure that the language used in a Will effectively distributes the property according to the person’s wishes. At client interviews, the probate attorney will ask questions and meet with the testator to ensure that the provisions in the Will are freely made by the testator. At the time of signing, the probate attorney can ensure that the Will is executed properly so that it will hold up legally during the probate process with minimal cost and time. She will ask questions and make sure that the testator was not unduly influenced at the time of execution.

It is advisable to hire an attorney to help draft and execute a Will so that family members can easily and quickly distribute the estate once a person passes away. If you have questions about Wills, execution requirements or Will contests, please contact Austin probate attorney Farren Sheehan for a consultation.


If you have any questions about undue influence when making a Will in Texas or anything else regarding Texas probate law, please do not hesitate to contact us by phone at (512) 355-0155 for an initial consultation. Other contact information is listed in the upper right-hand area of this page, and a contact form is also available on our contact page.

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